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Moss ethics hearing: Search for truth or a waste of time, money?

If phone call violated county policy, he's already admitted 'guilt'

Saturday, November 3, 2012 - 12:01 am

You don't know what you don't know. But when the cost of additional knowledge exceeds its likely value, discretion may indeed be the better part of valor.

Unfortunately, the Allen County Ethics Commission has painted itself into a fruitless, legalistic corner that can be escaped only by prolonging an investigation that has already dragged on far too long and refuted the central suspicion that justified it in the first place.

Did Allen County Councilman Paul Moss call Sheriff Ken Fries following a June 2 traffic stop in an ultimately successful effort to avoid a test that could have led to a drunken-driving charge? If so, the two men would have deserved worse than the scrutiny and notoriety they have received.

But unless they and the three police officers involved in the case are lying, we now know that there is no evidence Moss made such a request – and that there is evidence Fries did not intercede on his behalf.

“Fries . . . instructed me to do what I needed to do with the investigation,” County Officer Edward Hegbli wrote in a Sept. 24 statement to the Commission released this week, adding that the sheriff never told him to spare Moss a breath test or stop the investigation. Hegbli and fellow county Officer Steve Stuckey also stated they had no reason to believe Moss tried to influence Fries to stop the investigation.

City Officer Andrew Irick's statement did note that Stuckey told him that “per Sheriff Fries, we could disregard any further” investigation, but that second-hand comment is contradicted by Stuckey himself. Irick also wrote that he had no direct knowledge of what Moss sought or what, if anything, Fries did.

So what, exactly, is left for the Commission to investigate or decide?

At Monday's meeting, Chairman Tom Hardin and member Wendy Stein agreed that Moss's call to Fries constitutes “probable cause” to believe he violated the county's 2005 ethics policy, which in part prohibits actions that give even the appearance of seeking “special consideration.”

But if merely placing the call regardless of its content or intent violated the policy, the Commission could have ruled long ago. Moss has admitted from the beginning that he called Fries, but only to speed things up after 45 minutes at the scene.

Moss never should have placed the call, and Fries should not have accepted it. But if either committed an egregious abuse of authority in this case, it would have had to have been Fries, since only he had the power to stop the investigation -- even if Moss had requested it. That makes it all the more unfortunate that, in September, the Commission dropped its investigation of Fries on the grounds that the Indiana Sheriffs Association's ethics policy supersedes county guidelines.

Fries has denied wrongdoing as well, but the decision prevents the Commission from investigating why the officers allowed Moss to leave without a breath test.

As a matter of law, it requires more evidence to render judgment than to find probable cause. To that end, the hearing will provide a forum for the examination of records and the invaluable ability to confront accusers and challenge witnesses. But the board cannot impose honesty because it cannot punish perjury.

Just as the Commission should be praised for taking former county employee Phil Pease's conflict-of-interest complaint against Moss and Fries seriously, the board can now be criticized for needlessly elongating a process the ordinance requires to be “prompt.”

I consider Moss a friend. But my purpose is not to defend him but to point out that evidence released this week has reduced the Commission's investigation to a relatively trivial and benign point that even Moss now regrets.

And what if the Commission does ultimately rule that simply making that phone call violated the policy? It has no authority to punish an elected official, and even the publicity could do little damage since Moss will leave office at the end of the year.

When board member and former Allen Circuit Judge Tom Ryan walked out of Monday's meeting (and later resigned), he blasted the investigation as a “witch hunt.” That was unfair. But if this were a real court of law, Moss would have had the right to enter a plea long ago – which, in respect to the sole issue remaining before the Commission, he in effect already has. Instead, Moss has incurred thousands of dollars in legal bills. Whether taxpayers will have to do the same remains to be seen.

County Commissioner Nelson Peters would not comment on whether this case reveals flaws in the county's ordinance. But surely such a review is warranted. It should be possible to compel or even shame public officials and employees into good behavior without producing the kind of protracted, unseemly and ultimately counterproductive mess this case has become.

This column is the commentary of the writer and does not necessarily reflect the views or opinions of The News-Sentinel. E-mail Kevin Leininger at kleininger@news-sentinel.com, or call him at 461-8355.